IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

DJIBY MBAYE, 

Petitioner, CASE NO. 2:11-CV-1015

JUDGE ALGENON L. MARBLEY

v. Magistrate Judge E.A. Preston Deavers

COREY PRICE, 

DISTRICT DIRECTOR, I.C.E., 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 

He asserts he is being unconstitutionally detained by the United States Department of Homeland

Security, Immigration and Customs Enforcement (hereinafter “ICE”) pending his deportation to

Senegal. This matter is before the Court on Respondent’s Motion to Dismiss. For the reasons that

follow, the Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss, Doc. 5, be

DENIED and Respondent be DIRECTED to respond to Petitioner’s claim within twenty (20) days. 

FACTS and PROCEDURAL HISTORY

Petitioner, Djiby Mbaye, a citizen of Senegal, entered the United States in July 2002 with

a visitor’s Visa and applied for asylum. Upon his conviction for attempted rape, Mbaye served four

years incarceration. On January 11, 2011, he was released from this sentence, but detained by

Immigration and Customs Enforcement ("ICE") pending his removal to Senegal while ICE

attempted to obtain travel documents from the Senegalese Embassy. See Petition; Exhibits to

Motion to Dismiss. On November 10, 2011, Maybe was placed on supervised release and filed the

instant petition for a writ of habeas corpus. See Exhibit 1 to Motion to Dismiss. 

Petitioner complains that he is being unreasonably and unconstitutionally detained by ICE

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without a significant likelihood of his removal in the foreseeable future because the Senegal

government does not ordinarily issue travel documents. He requests release from the custody of

ICE. Respondent seeks dismissal of this habeas corpus petition based on lack of subject matter

jurisdiction; arguing that this action is moot, as Petitioner has been released from incarceration; and

because Petitioner has failed to file his § 2241 action against the proper respondent. 

JURISDICTION

Respondent contends this Court lacks subject matter jurisdiction because Petitioner is

challenging the process through which ICE is attempting to remove him from the United States. 

Respondent submits that under the REAL ID Act, the United States Courts of Appeals have sole

jurisdiction and exclusive judicial review of removal proceedings. This Court is not persuaded by

this argument. Where a habeas corpus petitioner challenges solely his continued detention, and not

the underlying final order of removal, the case is not properly transferred to the United States Court

of Appeals. See Kellici v. Gonzales, 472 F.3d 416, 419 (6th Cir. 2006)(legislative history of the

REAL ID Act indicates it was not intended to preclude habeas review of challenges to detention that

are independent of challenges to removal orders)(quoting Hernandez v. Gonzales, 424 F.3d 42, 42-

43 (1st Cir. 2005)). 

Here, Petitioner does not raise any challenge to his final order of removal. Instead, he

complains that ICE has unconstitutionally continued to hold him in custody without any foreseeable

likelihood of removal. Such a claim is properly addressed by this Court in § 2241 proceedings. See

Cheung v. Mukasey, No. 1:09cv-1049, 2009 WL 929010, at *2 (W.D. Mich. April 3, 2009)(citing

Zadvydas v. Davis, 533 U.S. 678, 688 (2001); Ly v. Hansen, 351 F.3d 263, 266 (6th Cir. 2003).

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MOOTNESS

Respondent next argues that Petitioner’s habeas corpus petition is moot, because Petitioner

is no longer incarcerated, and on November 10, 2011, was released under an Order of Supervision.

The United States Court of Appeals for the Sixth Circuit in Rosales-Garcia v. Holland, 322 F.3d

386, 395 (6th Cir. 2003), specifically rejected this argument as it applies to habeas corpus petitions

involving immigration proceedings. See also Berry v. Adducci, No. 10-10969, 2010 WL 2105130,

at 2-3 (E.D. Mich. May 25, 2010)(citing Jones v. Cunningham, 371 U.S. 236, 243 (1963); DePompei

v. Ohio Adult Parole Authority, 999 F.2d 138, 140 (6th Cir. 1993); Sevier v. Turner, 7412 F.2d 262,

269 (6th Cir. 1984)). A petitioner subject to a final order of deportation is considered to be “in

custody” for purposes of habeas corpus relief, even if he is not in the physical custody of the

immigration agency, because he is subject to the restriction of movement resulting from “any final

order of deportation.” Berry v. Adducci, 2010 WL 2105130, at *3 (citations omitted). An “alien

subject to a final order of removal and who is not in the physical custody of INS may file an

application for habeas relief under 28 U.S.C. § 2241." Lemeshko v. Wrona, 325 F.Supp.2d 778, 782-

83 (E.D. Mich. 2004)(citations omitted). 

Because Petitioner remains under an Order of Supervision and subject to removal by ICE,

the action is not moot due to his release from incarceration.

PROPER RESPONDENT

Respondent also seeks dismissal of this action on the basis that Petitioner has failed to name

the proper respondent. Respondent argues that Corey Price, the District Director of ICE, is not

Petitioner’s custodian since Petitioner is not in the immediate custody of Price. 

The United States Court of Appeals for the Sixth Circuit rejected this argument in Roman

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v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003), holding that while a detained alien “filing a habeas

corpus petition should generally name as a respondent the person exercising daily control over his

affairs,” this person “is either the warden of the facility where the alien is detained or the INS

District Director of the district where the alien is being detained.” Id. (footnote omitted). In so

holding, the Sixth Circuit stated, “[w]e conclude that although the warden of each detention facility

technically has day-to-day control over alien detainees, the INS District Director for the district

where a detention facility is located ‘has power over’ alien habeas corpus petitioners.” Id. (citation

omitted). WHEREUPON, the Magistrate Judge RECOMMENDS that Respondent’s Motion

to Dismiss, Doc. 5, be DENIED and Respondent be DIRECTED to respond to Petitioner’s claim

within twenty (20) days of any entry of the District Judge adopting this recommendation. 

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that party may, within fourteen (14)

days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation

will result in a waiver of the right to have the district judge review the Report and Recommendation

de novo, and also operates as a waiver of the right to appeal the decision of the District Court

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adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985);United States

v. Walters, 638 F.2d 947 (6th Cir.1981). 

The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue. 

 s/ Elizabeth A. Preston Deavers 

UNITED STATES MAGISTRATE JUDGE

Date: March 9, 2012

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